Wakilii

Ssengendo v Busulwa & anor (Civil Application No. 207 of 2014)

Court of Appeal · [2014] UGCA 17 · 2014 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to the Court of Appeal for stay of execution pending appeal
Decision
Application for stay of execution dismissed with costs and notice of appeal struck out

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal dismissed an application for stay of execution. It held that, under Rule 42(1), an application for stay must first be made in the High Court, and there was no evidence it had been so made or rejected. No special or rare circumstances justified the Court hearing it first. The applicant failed to show substantial loss or that the appeal would be rendered nugatory, since execution concerned only taxed costs; impecuniousness does not amount to sufficient cause. The applicant also failed to retain proof of service under the mandatory Rule 83(3), so could not claim automatic extension of time. As no appeal had been filed within time, the notice of appeal was struck out.

Outcome

Application for stay of execution dismissed with costs and notice of appeal struck out

Facts

The applicant had won a civil suit in the Mpigi Chief Magistrate's Court, but that decision was set aside on appeal by the High Court on 25 September 2013. The applicant lodged a notice of appeal at the High Court on 8 October 2013 and in the Court of Appeal on 10 October 2013, but had not filed the appeal because the certified High Court record had not been availed. The respondents' bill of costs was taxed at UGX 10,905,000, and the respondents applied for execution to recover those costs. The applicant sought a stay of execution to preserve the status quo over suit land and to prevent recovery of costs, contending the appeal would be rendered nugatory. The respondents argued they remained in occupation of the suit land, the execution concerned only costs, no appeal was pending as time had lapsed, and the applicant had failed to take necessary steps including retaining proof of service of the letter requesting proceedings.

Issues

  1. Whether the application for stay of execution could be entertained by the Court of Appeal without first being made in the High Court.
  2. Whether the applicant established special circumstances and sufficient cause to justify a stay of execution.
  3. Whether the applicant complied with the mandatory service and proof requirements under Rule 83 of the Rules of the Court of Appeal.

Orders

  • Application dismissed with costs.
  • Notice of appeal struck out under Rule 2(2) of the Rules of this Court as an abuse of court process.
  • Civil Application No. 208 of 2014 for an interim order of stay of execution dismissed with no order as to costs.

Rules and key headnotes

Civil Procedure — Stay of Execution — Requirement to apply first in the High Court
Under Rule 42(1) of the Rules of the Court of Appeal, where an application for stay of execution may be made either in the Court of Appeal or the High Court, it must first be made in the High Court; the Court of Appeal will entertain it first only where the High Court refuses jurisdiction, where there is great delay, or where other special and rare circumstances make it in the interest of justice.
Civil Procedure — Stay of Execution — Sufficient cause and impecuniousness
An applicant for stay of execution pending appeal must show sufficient cause, namely that substantial loss may result or that the appeal would be rendered nugatory; impecuniousness or inconvenience to the judgment debtor does not amount to sufficient cause for a stay.
Civil Procedure — Stay of Execution — Execution of costs not rendering appeal nugatory
Where the execution sought to be stayed relates only to recovery of taxed costs and not to the disposal of the subject matter of the suit, such execution does not render the appeal nugatory nor cause substantial loss, and a stay will not be granted.
Civil Procedure — Appeals — Mandatory service and proof of service under Rule 83
Compliance with Rule 83(3) of the Rules of the Court of Appeal, requiring an intending appellant to serve a copy of the request for proceedings on the respondent and retain proof of service, is mandatory and not a mere technicality; failure to retain proof denies the appellant the benefit of the automatic extension of time, and Article 126(2)(e) of the Constitution cannot cure such non-compliance.
Civil Procedure — Appeals — Institution of appeal not a stay; striking out notice of appeal
Under Rule 6(2) of the Rules of the Court of Appeal the institution of an appeal does not operate as a stay of execution, and where no appeal is filed within the time prescribed by Rule 83(1) the notice of appeal may be struck out under Rule 2(2) as an abuse of court process.

Legislation cited (10)

  • Judicature Act s.33
  • Rules of the Court of Appeal r.5(2)
  • Rules of the Court of Appeal r.6(2)
  • Rules of the Court of Appeal r.42(1)
  • Rules of the Court of Appeal r.44
  • Rules of the Court of Appeal r.83(1)
  • Rules of the Court of Appeal r.83(2)
  • Rules of the Court of Appeal r.83(3)
  • Rules of the Court of Appeal r.2(2)
  • Constitution of Uganda Article 126(2)(e)

Cases cited (6)

  • Lawrence Musiitwa Kyazze v Eunice Businghye (Civil Appeal No. 18 of 1990)
  • Kyambogo University v Prof. Isaiah Omolo Ndiege (Civil Application No. 341 of 2013)
  • National Enterprise Corporation v Mukisa Foods (Miscellaneous Application No. 7 of 1998)
  • Teddy Sseezi Cheeye v Enos Tumusiime (Civil Application No. 21 of 1996)
  • Francis Hansio Micar v Nuwa Walakira (Civil Application No. 9 of 1990)
  • John Matsiko v Banyankore Kweterana (Civil Application No. 43 of 1998)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Ssengendo Vs Busulwa & anor (Civil Application No. 207 of 2014) [2014] UGCA 17 (4 June 2014)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.